30th jun, 2010

European perspective on Bilski

A few days ago the US Supreme Court delivered its judgement in the long awaited Bilski vs Kappos case. 


In its decision the Supreme Court concludes that the business method in the Bilski patent is not patentable. As always the opinions are well written and very good at giving the historical perspective. 


The Court states that the machine or transformation test is not the exclusive threshold to pass for business method patents. That is the courts and patent office could use other tests as to determining patentability. The machine or transformation feels much like the “further technical effect” requirement of the EPC (see latest decision from the Enlarged Board of Appeal G003/08). 


In the minority opinion Judge Stevens, although agreeing with the conclusion, wishes to discuss the invention as a process rather than the machine or transformation test. He states that “The wiser course would have been to hold that petitioners’ method is not a “process” because it describes only a general method of engaging in business transactions—and business methods are not patentable.” Stevens (and the concurring judges) wants the case laid out as a matter of the process falling outside the word “process” in the constitution since a business method is not a real process. 


I like the majority opinion the best, since it is much more practicable than the minority opinion and a lot easier to communicate. 

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